Citation Nr: 1702940
Decision Date: 02/02/17 Archive Date: 02/15/17
DOCKET NO. 13-15 111 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California
THE ISSUE
Entitlement to an evaluation in excess of 20 percent prior to July 19, 2016, for right dislocated semilunar lunar cartilage with episodes of locking, pain, and effusion into the joint to include whether a separate compensable evaluation for right knee surgical scar.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
P. Olson, Counsel
INTRODUCTION
The Veteran had active military service from August 1981 to March 1984.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.
The Board notes that effective July 19, 2016, the Veteran's service-connected right knee disability, recharacterized as status post total knee replacement, has been evaluated as 100% disabling. In this case, the RO has proposed that a 30 percent evaluation will be assigned effective September 1, 2017. Under Diagnostic Code 5055, a 100 percent evaluation is warranted for the one year following implantation of the prosthesis; a 60 percent rating is warranted for a total knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity; and a 30 percent rating is the minimum possible rating assignable. Intermediate degrees of residual weakness, pain, or limitation of motion (i.e. a level of disability in between those contemplated by the 30 and 60 percent ratings) are to be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. 38 C.F.R. § 4.71a, Diagnostic Code 5055.
As the 30 percent evaluation has been proposed for a future date, there is no way for the Board to assess the correct rating. Thus, the Board will restrict its analysis to the issues of entitlement to an evaluation in excess of 20 prior to July 19, 2016, for right dislocated semilunar lunar cartilage with episodes of locking, pain, and effusion into the joint and entitlement to a separate compensable evaluation for right knee surgical scars. If the Veteran is ultimately dissatisfied with the 30 percent rating or other rating assigned at the end of the temporary total rating period, he is free to appeal that action at that time.
The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS).
FINDINGS OF FACT
1. Prior to July 19, 2016, the Veteran's service-connected right knee disability has not been manifested by ankylosis, subluxation or lateral instability, limitation of motion on flexion to 15 degrees or less, limitation of motion on extension to 20 degrees or more, impairment of the tibia or fibula, or genu recurvatum.
2. Prior to July 19, 2016, the Veterans right knee surgical scar has not been shown to be painful, unstable, or of a total area greater than 39 square centimeters (6 square inches).
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 20 percent for dislocated semilunar lunar cartilage with episodes of locking, pain, and effusion into the joint were not met or approximated prior to July 19, 2016. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 7805-5258 (2015).
2. The criteria for a separate compensable evaluation for right knee surgical scars have not been met or approximated prior to July 19, 2016. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Codes 7802, 7804, 7805 (2015).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in September 2011 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.
The Board notes that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59 (2015); Correia v. McDonald, 28 Vet. App. 158 (2016). In view of the joint replacement, a remand to obtain a retrospective opinion on the factors set forth in Correia would merely impose additional burdens on VA with no benefit flowing to the Veteran, as VA would be asking an examiner to resort to speculation as to what passive motion, in weight-bearing and nonweight-bearing, were in 2011 and 2013. See Soyini v. Derwinski, 1 Vet. App. 541 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The 2011 and 2013 VA examinations contain range of motion studies. They also contain the pertinent information allowing VA to analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss. 38 C.F.R. § 4.40 (2015); DeLuca v. Brown, 8 Vet. App. 202 (1995).
As such, the Board finds that there is no evidence that additional records have yet to be requested, or that additional examinations are in order.
Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.
When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).
From September 1, 2011 to July 18, 2016, the Veteran's service-connected right knee disability, characterized as for dislocated semilunar lunar cartilage with episodes of locking, pain, and effusion into the joint with surgical scar, was rated as 20 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 7805-5258. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned; the additional code is shown after a hyphen. 38 C.F.R. § 4.27 (2015).
38 C.F.R. § 4.118, Diagnostic Code 7805 provides that scars (including linear scars) not otherwise rated under Diagnostic Codes 7800-7804 are to be rated based on any disabling effects not provided for by those codes. 38 C.F.R. § 4.71a, Diagnostic Code 5258 provides a maximum 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. §§ 4.71a.
Disabilities of the knees are evaluated pursuant to the criteria within 38 C.F.R. § 4.71a, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum).
38 C.F.R. § 4.71a, Diagnostic Code 5256 provides for a 30 percent rating (and even higher ratings) for ankylosis of a knee in a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. Ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure. Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995).
According to Diagnostic Code 5257, which rates impairment resulting from other impairment of the knee, to include recurrent subluxation or lateral instability, a 10 percent rating is assigned with evidence of slight recurrent subluxation or lateral instability of a knee; 20 percent rating is assigned with evidence of moderate recurrent subluxation or lateral instability; and 30 percent rating is assigned with evidence of severe recurrent subluxation or lateral instability. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under Diagnostic Code 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996).
38 C.F.R. § 4.71a , Diagnostic Code 5258 provides for a 20 percent rating for a dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the knee joint.
38 C.F.R. § 4.71a, Diagnostic Code 5259 provides for a 10 percent rating for symptomatic residuals of removal of a semilunar cartilage. Ratings under Diagnostic Code 5259 require consideration of 38 C.F.R. §§ 4.40 and 4.45 because removal of a semilunar cartilage may result in complications producing loss of motion. VAOGCPREC 9-98.
Under Diagnostic Code 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees.
Under Diagnostic Code 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees.
Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II.
38 C.F.R. § 4.71a, Diagnostic Code 5262 provides for evaluation of impairment of the tibia and fibula. With malunion and slight knee or ankle disability a 10 percent rating is warranted; with moderate knee or ankle disability a 20 percent rating is warranted; and with marked knee or ankle disability a 30 percent rating is warranted. For a 40 percent rating there must be nonunion of the tibia or fibula with loose motion, requiring a brace.
38 C.F.R. § 4.71a , Diagnostic Code 5263 provides for a 10 percent rating for genu recurvatum, when acquired, traumatic, with weakness and insecurity in weight-bearing which is objectively demonstrated.
Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97 (July 1, 1997) held that arthritis and instability of the same knee may be rated separately under Diagnostic Codes 5003 and 5257. Subsequently, VAOPGCPREC 9-98 further explained that if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. See also VAOPGCPREC 9-04 (holding that separate ratings under Diagnostic Code 5260 for limitation of flexion of the knee and Diagnostic Code 5261 for limitation of extension of the knee may be assigned).
Thus, if there are symptoms as a residual of a meniscectomy (partial removal of semilunar cartilage in the knee) which are subluxation, instability, or limitation of motion, separate ratings for such manifestation may be assigned. However, 38 C.F.R. § 4.71a, Diagnostic Code 5258 provides for a 20 percent rating for a dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. A locked knee is "a condition in which the knee lacks full extension and flexion because of internal derangement, usually the result of a torn meniscus." Stedman's Medical Dictionary 952 (27th ed. 2000). Thus, locking encompasses limitation of motion such that assigning additional and separate rating for limited knee flexion or extension under, respectively, Diagnostic Codes 5260 or 5261 would constitute pyramiding under 38 C.F.R. § 4.14; and, as such, is prohibited. See VAOPGCPRECs 23-99 and 9-93.
On September 1, 2011, the Veteran requested an increase in the rating of his service-connected right knee condition. As such, the Board has reviewed the evidence up to a year prior to the Veteran's claim (as is properly considered in a higher rating claim).
VA treatment records from November 2010 to June 2011 demonstrate that the Veteran complained of right knee pain and swelling and demonstrated limited flexion and extension, tenderness at lateral meniscus area, moderate crepitus, and small effusion. There was a positive Apley test.
MRI in June 2011 demonstrated complex tear of the body of the medial meniscus with a free edge/radial and a horizontal oblique component as well as interval progression cartilage loss at the medial tibiofemoral joint with underlying reactive marrow changes of the weight bearing portion of the medial femoral condyle.
In September 2011, the Veteran complained of right knee pain with a severity of 10/10 behind the knee and medially as well as episodes of locking with walking a few times a week and giving out. The Veteran reported that he wore his brace for travelling to VA, used Icy Hot in the morning, and used TENs unit every other day which provided brief improvement. On physical examination, the provider noted that there was no right knee erythema, effusion, or gross abnormalities. Flexion was to 95 degrees, and extension was full. There was mild tenderness to palpation in popliteal as well as medial and lateral facets; and it was difficult to mobilize the patella. Valgus/varus stability was good with pain medially with extreme unloading.
The Veteran underwent VA examination in December 2011 at which time he reported persistent right knee pain and loss of range of motion, difficulty working, and using a cane and a knee brace. The Veteran reported having had two cortisone injections and four Hyalgan injections with no improvement. He reported flare-ups with prolonged walking, kneeling, and bending. Medications and rest were noted to be helpful. Physical examination demonstrated flexion to 110 degrees with pain at 100 degrees, extension to zero degrees with no objective evidence of painful motion. After three repetitions, range of motion was unchanged. The examiner noted that there was less movement than normal, pain on movement, swelling, and deformity. There was also tenderness or pain to palpation for joint line or soft tissues. Muscle strength testing and joint stability testing were normal. There was no evidence or history of recurrent patellar subluxation/dislocation. The examiner noted the meniscal tear, frequent episodes of joint "locking", pain, and effusion. The Veteran was diagnosed as having medial meniscus injury, degenerative arthritis, and medial collateral ligament strain of the right knee. The examiner noted that the Veteran's knee condition impacted his ability to work and noted that there could be no prolonged walking or standing and only limited kneeling, bending stooping, and climbing.
The Veteran underwent VA examination in April 2013 at which time he reported being unable to run and climb stairs, that his pain was 9/10, and that he used Icy Hot and took Naproxen. The Veteran also reported that he was advised that he had bone-on-bone findings on x-rays and that knee replacement at age 55 was being considered. The Veteran did not report flare-ups. Physical examination demonstrated flexion to 90 degrees with pain at 90 degrees and extension to zero degrees with no objective evidence of painful motion. After three repetitions, range of motion was unchanged. The examiner noted that the Veteran did not have additional limitation in range of motion of the knee following repetitive-use testing but did have less movement than normal, pain on movement, and atrophy of disuse. There was also tenderness or pain to palpation for joint line or soft tissues. Muscle strength testing indicated 4/5 strength, and joint stability testing was normal. There was no evidence or history of recurrent patellar subluxation/dislocation. The examiner noted that the right knee had pain and symptoms such as locking and giving out and that it had "swollen up." The examiner noted the meniscal tear, frequent episodes of joint "locking", and pain. X-rays revealed moderate to severe tricompartmental osteoarthrosis, most pronounced in the medial femoral tibial joint compartment. The Veteran was diagnosed as having right knee meniscal tear and osteoarthritis. The examiner noted that the Veteran's knee condition impacted his ability to work with limited walking and standing.
In reviewing the evidence, the Board finds that a rating in excess of 20 percent prior to prior to July 19, 2016, is not warranted. The Veteran reported numerous symptoms related to his knee condition with pain as the most prominent manifestation. Objectively, however, the Veteran did not meet the criteria for a compensable rating for either limitation of flexion or extension. Extension has been consistently full; and flexion, at its worst, was limited to only 90 degrees. Therefore, the Veteran's right knee disability has not met the criteria for a compensable rating under Diagnostic Codes 5260 and 5261. With application of Codes 5003-5010, regarding arthritis with painful motion of the joint that would otherwise be noncompensable under the limitation-of-motion codes, his knee disability would be evaluated at no more than 10 percent for limitation of motion of the joint.
Furthermore, as earlier noted, the Veteran's principal symptom appears to be pain, but the objective findings did not show that pain actually limited his knee to such an extent as to satisfy the criteria provided for a compensable rating for either limitation of flexion or limitation of extension under Diagnostic Codes 5260 or 5261. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The December 2011 and April 2013 VA examiners noted that after three repetitions, range of motion was unchanged. The April 2013 VA examiner noted that the Veteran did not have additional limitation in range of motion of the knee following repetitive use testing. Therefore, even considering the Veteran's right knee pain, he would not meet the criteria for a higher (or even a compensable) rating under Diagnostic Codes 5260 and 5261.
Also, in considering his complaints of giving out in September 2011, on physical examination, valgus/varus stability was noted to be good; and on VA examinations there was no evidence of subluxation or dislocation and joint stability testing was normal. As such, Diagnostic Code 5257 is not applicable.
Other diagnostic codes pertaining to the evaluation of the knee have been considered, but the Veteran could not receive a rating under any analogous code. For example, there is no evidence of ankylosis of the knee or of tibia and fibula impairment with knee disability. Accordingly, the criteria under 38 C.F.R. § 4.71a, Codes 5256 and 5262, are not for application.
As such, the criteria for an evaluation higher than 20 percent for right dislocated semilunar lunar cartilage with episodes of locking, pain, and effusion were not met or approximated prior to July 19, 2016.
The Board has also considered whether a separate compensable evaluation is warranted for right knee surgical scars. Under 38 C.F.R. § 4.118, to warrant a compensable rating, the scarring must be at least six square inches (39 sq. cm) for deep and nonlinear scar, 144 square inches (929 sq. cm) for nonlinear superficial scar, unstable, or painful. See 38 C.F.R. § 4.118, Diagnostic Code 7801-7805. The December 2011 and April 2013 VA examiners noted that the Veteran's surgical scars were not painful, unstable, or the total area greater than 39 square centimeters (6 square inches).
As such, the criteria for a separate compensable evaluation for right knee surgical scars have not been met or approximated.
The discussion above reflects that service-connected right knee disability symptoms prior to July 19, 2016, are contemplated by the applicable rating criteria. The effects of his disability, including of pain, swelling, limited range of motion, tenderness at lateral meniscus area, crepitus, effusion, locking, and giving way have been fully considered and are contemplated in the rating schedule. Thus, consideration of whether his disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extra-schedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008).
Finally, under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. In this case, however, even after applying the doctrine of reasonable doubt, there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.
The Board acknowledges the judicial holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In that decision, the United States Court of Appeals for Veterans Claims held that a request for a total rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. In the present case, there is no indication in the record that reasonably raised a claim of entitlement to a TDIU. VA outpatient treatment records dated in October 2016 indicate that the Veteran was employed as a general contractor/ maintenance supervisor and that a work letter had been provided with an "ok" for the Veteran to return to work at the end of November 2016.
ORDER
Entitlement to an evaluation in excess of 20 percent prior to July 19, 2016, for right dislocated semilunar lunar cartilage with episodes of locking, pain, and effusion into the joint is denied.
Entitlement to a separate compensable evaluation for right knee surgical scars prior to July 19, 2016 is denied.
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MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs